Let's say your business has hired a new employee, but that person is unable to finish the I-9, having lost key documents including driver's license, Social Security card, and passport. (Although such an event is uncommon, it could happen because of, say, a stolen wallet or home burglary). Your employee brings you a document from the Department of State showing that they applied to get a new passport. Do you have to terminate the person's employment and rehire them once the documents arrive, or can the employee work while awaiting the passport?
As explained below, your new employee can work in a situation such as this.
For I-9 purposes, employers are allowed to accept a receipt for an official application to replace a lost, stolen, or damaged document. The receipt only works for 90 days, though. After that, your employee will need to present an original document or documents.
The important rules to remember in this situation are:
*Note that in certain situations, foreign nationals may continue to work for an employer based on an application to extend status. You should confirm that the document is acceptable and confer with your immigration counsel regarding proper I-9 completion prior to accepting a receipt for such a petition.
Attorneys disagree about whether the employee must present the actual replacement document at the end of the 90-day period (or may instead present a different I-9 document). In the situation described above, an employee who did not receive the replacement passport before the end of the 90-day period may wish to present a new driver's license and Social Security card to the employer.
According to U.S. Citizenship and Immigration Services (USCIS) guidance, the employee should not be allowed to do so. However, many attorneys disagree, citing concerns about discrimination claims. As such, you should speak with an attorney if you face such a situation so that you understand the risks of accepting or not accepting alternative documentation.
USCIS also indicates that the employee may not present another receipt at the end of the 90-day period; the employee is required, at that point, to present an original document. Again, attorneys may disagree about whether employers face more risk by following this guidance or by accepting a second receipt. Speak with an attorney if you face this type of situation and are unclear about how to proceed.
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